The Kansas Supreme Court released the following published decisions today:

This is the second time this Sherman County case was brought before the Supreme Court.

Moyer was convicted by jury of five sex crimes against his minor daughter. Previously, the Supreme Court remanded Moyer's case to the district court to determine whether Moyer was denied his constitutional right to effective assistance of counsel at his trial. At that time, this court reserved ruling on whether the cumulative effect of other errors at Moyer's trial denied Moyer a fair trial. Following remand, the Supreme Court affirmed Moyer's convictions, holding Moyer was not denied his constitutional right to effective assistance of counsel and rejecting Moyer's claim that cumulative trial errors denied him a fair trial.

The Supreme Court today denied a request for new trial from LaPointe, who claimed recent DNA test results would have changed the outcome of his trial for the armed robbery of a Roeland Park Payless store in 2000 In its decision, a divided court narrowed the scope of convictions eligible for postconviction DNA testing under state law. A jury convicted LaPointe of aggravated robbery and aggravated assault. Years later, he requested DNA testing under a state law authorizing postconviction DNA testing in certain first-degree murder and rape cases. LaPointe argued his prison sentence was similar to those imposed for the statutorily designated crimes so he was entitled to the same testing. A Johnson County district court judge agreed, ordered the testing, but ultimately concluded the results would not have changed the jury's verdict

Writing for the majority, Justice Dan Biles said the court agreed with the decision to deny LaPointe a new trial. It also concluded a 2013 decision judicially expanding the crimes eligible for postconviction DNA testing based on the term of imprisonment should be overruled.

"The Legislature has authority to grant a limited right to access postconviction DNA testing procedures without violating equal protection principles," Biles wrote. He was joined in this view by Chief Justice Lawton Nuss and Justices Eric Rosen and Caleb Stegall.

Disagreeing, Justice Carol Beier argued the case did not require overruling the 2013 decision, noting LaPointe's long prison sentence was "largely attributable to his extensive criminal history, not to the severity level and long sentences assigned to his crimes in this case." She was joined in dissent by Justices Marla Luckert and Lee Johnson.

The Kansas Supreme Court released the following published decision today:

The Supreme Court rejected Donahue's attempt to have his life sentence declared illegal. A Sedgwick County jury found Donahue guilty of two counts of aggravated kidnapping for events that occurred in 1973, when Donahue was 16 years old. The district court sentenced him to life imprisonment with a mandatory 15-year term before being eligible for parole for the aggravated kidnapping counts. In 2016, Donahue claimed the sentence was cruel and unusual punishment due to his young age. In a unanimous decision, the court noted it has repeatedly rejected other cases trying to raise constitutional challenges under a state statute that limits challenges to sentences to arguments over jurisdiction, vagueness, or the failure to follow applicable statutes.

The Kansas Supreme Court released the following published decisions today:

The Supreme Court suspended Kurth, of Liberal, from the practice of law for six months for multiple violations of the Kansas Rules of Professional Conduct. The court adopted the disciplinary hearing panel's findings of facts and conclusions of law with respect to Kurth's rules violations. Kurth's violations related to her failure to represent clients with reasonable diligence and promptness, keep her clients informed of the status of the matter she was representing them in, charge reasonable fees, and take the necessary steps to protect her clients' interests when terminating representation.

Grillot, of Independence, was disbarred from the practice of law for violating the Kansas Rules of Professional Conduct governing competence, diligence, communication, fees, safekeeping property, termination of representation, candor toward tribunal, commission of a criminal act reflecting adversely on lawyer's honesty, trustworthiness, or fitness as a lawyer, engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, and engaging in conduct prejudicial to the administration of justice.

The Supreme Court affirmed in part and vacated in part the decision of Shawnee County District Court and remanded with directions for resentencing. In this multiconviction case, Jamerson challenged his resentencing after the district court granted his motion to correct an illegal sentence because of an incorrect criminal history score, but then also modified the duration and concurrent nature of one of his legal, nonbase sentences. The court held that the district court could only correct the illegal sentence. When correcting an illegal sentence, the district court's authority in setting the length of the new prison term includes determining whether the corrected sentence will run consecutive to, or concurrent with, the other sentences. Accordingly, the court affirmed the correction of the illegal sentence and vacated the modification to the legal sentence. Two justices wrote separately, concurring in part and dissenting in part. They agreed that the district court had authority to correct the illegality, but disagreed that correcting the illegality extended to the consecutive or concurrent nature of the sentence.

The Kansas Supreme Court released the following published decisions today:

The Supreme Court reversed a Cowley County District Court garnishment order against Key Insurance Co. Key was Eby's auto insurance carrier at the time of Eby's traffic accident involving Geer. After settlement negotiations between Geer's insurer and Key failed, Geer sued Eby. Eby did not give notice to Key of the lawsuit, as he was required to do by his policy terms. Eby also did not file an answer to Geer's lawsuit, which ultimately resulted in a default judgment against him After Key refused to pay the policy limit to Geer, Geer requested a garnishment order against Key, which was granted in district court.

In reversing the garnishment order, the court held Eby breached his duties under the policy to give Key notice of the lawsuit. In addition, the breach prejudiced Key by depriving it of the opportunity to contest its insured's liability or settle the case without exposing Key to potential liability in excess of its policy limit.

In a decision written by Justice Eric Rosen, the Supreme Court affirmed a Court of Appeals decision holding Saline County District Court did not err in imposing court costs under K.S.A. 22-3801 and K.S.A. 28-172a for expenses related to trial preparation. It also reversed a Court of Appeals decision holding Alvarez had not properly preserved or briefed his argument. Alvarez argued the use of a criminal history score to increase a presumptive prison sentence violated his constitutional rights.

The Kansas Supreme Court released the following published decisions today:

The Supreme Court affirmed Ayers' Wyandotte County District Court convictions and sentence for felonies relating to the murder of Detective Brad Lancaster. However, the court vacated the district court's assessment of Board of Indigents' Defense Services fees and remanded the case for reconsideration of the fees. After conviction, Ayers was sentenced to life without parole for capital murder and 560 months for other crimes. All of Ayers' sentences were ordered to run consecutive to each other, except for aggravated burglary sentences. At sentencing, the district court judge failed to consider—on the record—Ayers' ability to pay the Board of Indigents' Defense Services fees as required under Kansas law. On appeal, Ayers argued that the district court did not follow the proper procedure when it assessed the Board of Indigents' Defense Services fees against him, and abused its discretion when it ordered most of his sentences be served consecutive to each other. The court agreed with Ayers on the issue of Board of Indigents' Defense Services fees and held that the district court did not follow the proper procedure. However, the court rejected Ayers' argument about his sentence because it could not say the district court abused its discretion.

The Supreme Court reinstated a lawsuit seeking relocation benefits from the City of Topeka for tenants who lost business leases to accommodate a public works project. The court held facts were in dispute, so the Shawnee County District Court improperly granted the city judgment without a trial. The City argued the law only required it to pay for relocation if it threatened or took some affirmative action to condemn the property. In this case, the city bought the property from the owner in a negotiated purchase. In a unanimous decision written by Justice Dan Biles, the court held the matter as to whether a condemnation action would have occurred if the City had not been able to buy the land was a factual question, and the evidential record regarding that matter was not undisputed. In returning the case to district court, the court also rejected the tenants' argument they were automatically entitled to compensation anytime a condemning authority acquires property for a public project. "The statute is not that generous," the court concluded.

The Supreme Court rejected Samuel's attempt to have his life sentence declared illegal. Samuel pled guilty in Wyandotte County District Court to second-degree murder for the 1996 killing of Patrick Brunner. Samuel was 16 years old when he was sentenced to life imprisonment with a mandatory 10-year term. He claimed his life sentence was cruel and unusual punishment due to his young age. In a unanimous decision, the court noted it had repeatedly rejected other cases trying to raise constitutional challenges under a state statute that limits challenges to sentences to arguments over jurisdiction, vagueness, or the failure to follow applicable statutes.

The Supreme Court disbarred Knox from the practice of law for violating the Kansas Rules of Professional Conduct regarding competence, diligence, communication, fees, expediting litigation, truthfulness, conduct involving dishonesty, fraud, deceit or misrepresentation, conduct prejudicial to the administration of justice, conduct adversely reflecting on his fitness to practice law, and failure to cooperate in the disciplinary action.

In a decision written by Justice Eric Rosen, the Supreme Court affirmed the Sedgwick County District Court's order denying Robinson's postconviction motion to compel discovery under K.S.A. 60-237. The court held that the statute did not permit such relief.

The Supreme Court reversed the Court of Appeals decision affirming Doelz's drug conviction and remanded for a new trial in Leavenworth County District Court because police conducted an unconstitutional warrantless search of Doelz's vehicle.

The Kansas Supreme Court released the following published decisions today:

Gonzalez-Sandoval was convicted of aggravated indecent liberties with a child. During jury selection, the State used a peremptory strike to remove a potential juror with a Spanish-sounding surname. Gonzalez-Sandoval objected to the strike. The State provided a race-neutral explanation, and the district court allowed the State to strike the juror. During the trial, the State learned its asserted reason was incorrect. It informed the district court and provided an alternative race-neutral grounds to support the strike. Post-conviction, Gonzalez-Sandoval requested a new trial based on this stricken juror. The district court denied his request, finding the State honestly believed the reasons it relied on when it gave them. The Court of Appeals reversed. The Supreme Court affirmed the district court. The Supreme Court held the State's honest but mistaken belief about a facially valid race-neutral reason for striking a minority venire member does not presumptively amount to purposeful discrimination in violation of Gonzalez-Sandoval's constitutional rights.

Summary calendar; no oral argumentThe Supreme Court held that the district court erred in summarily dismissing Nguyen's third pro se motion under K.S.A. 60-1507. Nguyen claimed multiple errors led to his 2003 convictions for felony murder and other felonies, including conspiracy to commit aggravated burglary and conspiracy to commit kidnapping. The Supreme Court held Nguyen deserved the same relief that his two codefendants received from the Supreme Court when their convictions for conspiracy to commit kidnapping were reversed and remanded for resentencing because the charge was multiplicitous with the crime of conspiracy to commit aggravated battery The Supreme Court held that the district court's findings dismissing the remainder of Nguyen's motion were conclusory in nature, so the Supreme Court remanded for the district court to make findings on the other issues Nguyen presented in his motion.

The Kansas Supreme Court released the following published decisions today:

The Supreme Court clarified that the two-step analytical framework—set out in State v. Sherman, 305 Kan. 88, 378 P.3d 1060 (2016), for reviewing claims alleging a prosecutorial behavior during a jury trial requires reversal—applies equally to sentencing proceedings before a judge. The decision came in an appeal brought by Wilson, who challenged a Reno County District Court order extending his postrelease supervision from three years to his lifetime. Wilson pled guilty in 2007 to aggravated indecent solicitation of a child. He claimed the Reno County district attorney, Keith Schroeder, misstated the facts in Wilson's case during oral arguments in a hearing on the State's motion to lengthen the postrelease supervision. Wilson argued Schroeder's misstatements likely affected the judge's ruling and, therefore, the order was unconstitutional. A divided Kansas Court of Appeals panel reversed the order based on Schroeder's misstatements and ordered a new hearing. The State petitioned the Kansas Supreme Court to review the panel's decision.

In an unanimous opinion written by Justice Dan Biles, the Court noted Kansas caselaw previously addressed claims that prosecutors committed reversible error during jury trials, but had not said whether the same caselaw applied to prosecutors' conduct before a judge. "We hold prosecutorial missteps may implicate due process rights to a fair trial in this nonjury context," Biles wrote.

The Court noted the prosecutor's misstatements about Wilson's crime were not in evidence. "As for the impact of that error," Biles wrote, "it appears reasonably possible the prosecutor's prompt pushed the court into considering unsupported allegations rather than evidence." The case returns to Reno County for another hearing.

Owens was investigated by the Office of the Disciplinary Administrator based on complaints from two of her former clients, alleging multiple violations of the Kansas Rules of Professional Conduct for attorneys. The Disciplinary Administrator filed a formal complaint with the Kansas Board for Discipline of Attorneys and the Board held a formal hearing. The hearing panel found Owens violated multiple rules, including those related to competence, diligence, communication, safekeeping property, termination of representation, failing to respond to a demand from a disciplinary authority, and engaging in conduct prejudicial to the administration of justice. The hearing panel unanimously recommended a six-month suspension from the practice of law and a requirement for a reinstatement hearing under Kansas Supreme Court Rule 219. Owens challenged the hearing panel's findings that she violated Kansas Rules for Professional Conduct 1.15(b) and 1.16(d) and argued she should be placed on probation or, in the alternative, receive a sanction of published censure. The Supreme Court rejected Owens' arguments because the hearing panel's findings were supported by clear and convincing evidence. The court imposed a six-month suspension from the practice of law with a requirement that Owens undergo a reinstatement hearing under Kansas Supreme Court Rule 219.

The Kansas Supreme Court released the following published decisions today:

A divided Supreme Court ruled that the smell of raw marijuana coming from a residence, when combined with other circumstances, can supply probable cause to support a residential search by police. This ruling is the first time the court addressed the issue and settled a conflict between Court of Appeals decisions.

The Supreme Court affirmed Hubbard's misdemeanor convictions of possession of marijuana and possession of drug paraphernalia in Douglas County District Court Police officers testified they smelled the strong odor of raw marijuana while standing at Hubbard's apartment door questioning him about another matter. They directed the occupants to leave the apartment while they applied for a search warrant. The officers conducted a security sweep to preserve evidence, and then waited for a judge to issue the warrant. It was during that search they found 25.07 grams of raw marijuana in a Tupperware container inside a safe, a small amount of marijuana on a partially burnt cigarillo in the living room, and several bongs, which were clean and had no marijuana residue.

Hubbard challenged the officers' ability to smell raw marijuana at his doorway. The district court disagreed, noting the officers' experience in detecting the odor. Hubbard also argued the officers needed to be qualified as expert witnesses to give their opinions about what they smelled.

In affirming the conviction, the Supreme Court split 4-3. The majority noted Kansas has recognized for several years that the odor of marijuana detected by an officer trained and experienced in identifying the smell provided probable cause to search a vehicle. In applying those same principles to a residential search, the majority noted an officer's testimony about smelling the odor of an illegal substance was simply part of the circumstances that a court considers when deciding if there is probable cause to believe a crime is being committed or that the residence contains evidence. In rejecting the argument that officers needed to be qualified as experts, the majority opinion, written by Justice Dan Biles, observed, "We are not dealing with sommeliers trying to identify a white wine as a Loire Valley Chenin Blanc."

The dissent, written by Justice Carol Beier, and joined by Justices Eric Rosen and Lee Johnson, agreed with Hubbard that the officers needed to be qualified as expert witnesses.

The Supreme Court reversed a Geary County District Court order suppressing drug-related evidence seized during a residential search based on a police officer's testimony about smelling raw marijuana. The court held the testimony about the odor provided probable cause under the case's facts to justify a search warrant. This decision is a companion case to another decision released today in which court made a similar ruling.

Regelman was charged with possession of marijuana with intent to distribute within 1,000 feet of a school zone, possession of drug paraphernalia, and possession of marijuana. An officer testified he noticed a raw marijuana smell while standing at the front door to Regelman's house. The district court suppressed the drug-related evidence by ruling the smell of marijuana did not provide probable cause for a search. A Court of Appeals panel agreed, but the Supreme Court reversed.

The case will return to Geary County District Court for further proceedings. Justices Lee Johnson and Eric Rosen dissented.

The Supreme Court agreed Wichita police did not illegally seize a car while waiting for a drug dog search after the driver was pulled over and arrested for a traffic violation. The court concluded the State properly used cocaine found within the vehicle to convict Parker with possession of the drug.

In addition to cocaine possession, a Sedgwick County jury convicted Parker of fleeing or attempting to elude a police officer, driving with a suspended license, failure to signal while turning, and driving with no head lamps. The Court of Appeals rejected Parker's challenges to the admission of the drug evidence, the sufficiency of evidence for eluding the police officer, and the use of Parker's prior convictions to enhance his sentence. A majority of the Supreme Court agreed with those rulings. Justice Lee Johnson dissented on the vehicle seizure issue and would have reversed the drug conviction.

The Court of Appeals remanded the case to Sedgwick County District Court to consider whether the prosecutor used peremptory strikes to remove the only potential juror of Parker's race from the jury pool. That ruling was not before the Supreme Court.

The Topeka Bar Association and the Topeka Police Department invite attorneys to stock Eisenhower and Chase Middle Schools with professional clothing for their Tie Thursdays Program.

Topeka Police Officers will be at this Friday's December Bar Luncheon to discuss the daily work they do with at-risk youth by mentoring them and providing life skills. One of the initiatives in this program is “Tie Thursday”. This initiative helps the young men and women who the officers work with to develop their leadership, critical thinking skills and achieve academic excellence by dressing for success. On Thursdays when the youth attend school, they wear a dress shirt, tie or professional clothing which allows them to also work on their self-esteem.

“It’s amazing to see how much dressing professionally increases the youth’s confidence and self-esteem,” Chief Cochran said. “There is always a great need for more ties, dress shirts and professional clothing for these young men and women. We are anxious to partner with attorneys in Topeka to support this fun campaign.”

The Topeka Police Department partnered with Eisenhower Middle School to establish the Our Kids Program (OK Program). The goal of the program is to reduce the high rates of incarceration and homicide among at-risk youth. Because of the success of the OK Program at Eisenhower Middle School, the Topeka Police Department expanded its Youth Outreach Program to Chase Middle School in 2018.

New or gently used dressed shirts, ties and professional clothing or monetary donations may be dropped off at the Topeka Bar Association (700 SW Jackson Street, Suite 209) through the month of December or brought to the TBA December Bar luncheon on Friday, December 7th at 11:30 am. at the Capitol Plaza Hotel in the Emerald Ballroom. Please contact Tiffany Fisher at 785.233.3945 for more information about making arrangements for a specific donation.